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Tuesday, September 19, 2006

Will Layton finally get relief?

Earlier this month, James Harty and Donald Snapp won in State v. Layton, No. 93,186 (Kan. App. Sept. 1, 2006), obtaining a remand where the district court must determine whether Mr. Layton received ineffective assistance of appellate counsel after he failed to get McAdam relief on direct appeal.

You may or may not remember that Mr. Layton's direct appeal was sort of a predecessor case to McAdam. We had been presenting an argument about K.S.A. 65-4127c (i.e. that manufacture was a misdemeanor) in other cases and Cory Riddle made it in Layton. On December 13, 2002, Judge Lewis wrote an opinion for the COA stating that OF COURSE manufacture is not a misdemeanor, because after all it is just the same as compounding and compounding is a felony under K.S.A. 65-4161 (which is explicitly excepted from K.S.A. 65-4127c). We quickly recognized the importance of that statement and filed a motion for rehearing arguing that, under the COA reasoning (and under Frazier), Mr. Layton should be resentenced under K.S.A. 65-4161. In March 2003, the COA issued an amended opinion clarifying that the fact that compounding was included in K.S.A. 65-4161 only "reinforced" its conclusion that manufacture was intended to be a felony.

About a week after LaytonI, I moved to file a supplemental brief in State v. McAdam, which did not initially even have a sentencing issue included. The supplemental brief was based on "compounding" in K.S.A. 65-4161--the very argument that had been argued in the Layton I motion for rehearing. The COA granted the motion to supplement and allowed briefing on the sentencing issue about three weeks before oral argument. But in early April 2003, the COA again rejected the identical offense doctrine claim, this time using a specific/general analysis.

Cory Riddle and I simultaneously petitioned for review and in July 2003, the KSC granted both petitions. Cory argued Layton in October 2003 and I argued McAdam in December 2003. On December 12, 2003, the KSC issued State v. Layton, rejecting the issue regarding K.S.A. 65-4127c (holding that K.S.A. 65-4159 is not part of the Uniform Controlled Substances Act). And the Court held that, because Mr. Layton had not raised the "compounding" at the COA, it would not reach the issue on review. That, of course, was blatantly incorrect--although "compounding" was not included in Mr. Layton's original brief, it was raised before the COA in his motion for rehearing and had not obtained relief at the COA. But that's what the KSC said. Of course, about a month later, the KSC issued State v. McAdam, and established that we (and Judge Lewis) was right about "compounding."

But what about Mr. Layton? Because his case was no longer pending before the appellate courts when McAdam was decided (six weeks later), he is not directly entitled to McAdam relief (see Bryant v. State). But other decisions have established that it is probably ineffective assistance of appellate counsel for an ADO lawyer to have not raised an identical offense doctrine claim in a manufacture or precursor case after Frazier (see Laymon v. State; State v. Swisher). While I disagree that we actually didn't raise the "compounding" issue before the COA, that's water under the bridge (or as lawyers say: "law of the case"). So, I hope that we are found ineffective and that Mr. Layton finally gets relief. I was in Newton last week (for an IAAC claim in re McAdam coincidentally) and saw Mike Whalen, who indicated he is appointed for Mr. Layton's evidentiary hearing. He won the hearing in Newton. Hopefully, he also wins for Mr. Layton.

[Update: I appeared to testify at the hearing on January 8, 2007 in McPherson. Judge Anderson took the matter under advisement.]

[Further update: Michael Whalen contacted me and indicated that Judge Anderson denied relief, so Mr. Layton will have to back to COA.]